Order passed by lower appellate court held illegal.

1. Respondent in both these revisions, viz., United Commercial Bank, filed two suits, namely, O.S. Nos.84 of 1995 and 66 of 1996, on the file of District Munsif s Court, Rasipuram, against the petitioner herein.

2. Petitioner herein filed his written statement and the suits came for trial. The Manager of the Bank (Plaintiff) was present. But he was not in a position to proceed with the trial. In both the suits, the trial Court delivered judgment after stating thus:-

“This case is posted today for trial as NFA. At the time of calling, the plaintiff viz., UCO Bank represented by its Manager Mr.V. Krishnan was present but he refused to give evidence.

It seems that he is not willing to conduct his case. Hence it is unnecessary to keep the case bundle for a long time as a pending case. Accordingly, this suit is dismissed for non- prosecution of the case. Cost Rs. 1,000”.

3. Against that judgment, two appeals were filed as Appeal Nos.124 and 125 of 1996, on the file of Sub Court, Namakkal.

4. Before the lower appellate Court, the question of maintainability of the appeals was argued by the petitioner herein. It was contended before the lower appellate Court that since the suits were dismissed for default, no appeal will lie and the remedy of the plaintiff (respondent) was only to file an application under Order 9, Rule 9, CPC. The lower appellate Court rejected the contention, and the appeals were allowed, and the suits were remanded.

5. The jurisdiction of the lower appellate Court in entertaining the appeals is challenged in these revisions under Article 227 of the Constitution of India.

6. When the matter came for admission, I ordered notice of motion and interim stay was also granted. After receipt of notice, respondent also entered appearance, and both the parties were heard in detail.

7. The only question that requires consideration is, whether the lower appellate Court was right in entertaining the appeals.

8. Section 2 (2), CPC defines a ‘decree’ thus:-

“‘Decree’ means the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144 but shall not include:- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default “ Section 96, CPC provides for appeals only from decrees. It is under Section 96, CPC, right to prefer appeal is provided. The procedure is under Or.41, CPC. So the substantive right to prefer an appeal is only under Section 96, CPC and that must be from a decree. Under section 2 (2), CPC dismissal for default is not a decree.

9. Learned counsel for respondent relied on Order 17, Rule 3, CPC. It says that witness for plaintiff may be present. It says that witness for plaintiff may be present. But if he is not in a position to perform a thing that is necessary for the progress of the suit, the Court is entitled to decide the case forthwith. In the case on hand, plaintiff’s witness was present. But he was not prepared to proceed with the case. The Court also decided the case simultaneously. It was, therefore, argued that the dismi ssal is on merits, and consequently an appeal lies. It was also contended that for dismissal for default, there should not be any appearance of the party, and in this case, the witness was physically present before Court. So, when the witness has physically appeared before Court, the provisions of Order 9, CPC have no application. Learned counsel submitted that Order 9, CPC deals with appearance of parties and the consequence of non- appearance of parties. Only in cases where the parties have not appear ed, the consequence under Order 9, CPC will follow and he also laid emphasis on the provisions of Order 17, Rule 3 (b),